Report from Governmental Affairs

A Costly Cure

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A push is continuing in congress that would cap damage awards in medical malpractice cases.

It remains uncertain, however, whether the Senate will follow the lead of the House of Rep­re­sen­ta­tives, which passed a bill more than a year ago that would impose caps on noneconomic dam­ages in medical malpractice cases.

The ABA is urging that Congress refrain from passing legislation addressing medical professional liability on the grounds that it is an issue that should be addressed primarily by the states.

The House passed its bill in March 2003 after the Bush administration identified as a priority the adoption of federal legislation addressing medical professional liability. The legislation would impose a $250,000 limit on non­eco­nomic damages, including pain and suffering, that plaintiffs could recover in malpractice lawsuits. The bill also would cap punitive damages at twice the economic damages or $250,000, whichever is greater, and limit attorney fees.

In July, however, the Senate fell 11 votes short of the 60 needed to consider its own version of the bill. That vote prompted the Senate’s Republican leadership to adopt a new strategy. Instead of taking up one comprehensive medical liability bill, the Senate began considering a series of bills directed to­ward specific specialties.

The first in that series of bills—imposing limits in suits against obstetricians and gynecologists—also failed to reach a Senate vote. Nevertheless, proponents are pushing for passage of a bill directed toward trauma doctors and emergency room personnel. That bill is expected to reach the Senate floor before summer, followed by another bill focusing on doctors working in underserved areas.

President Bush and others pushing for the legislation say lawsuits are driving doctors out of practice and undermining the availability of U.S. health care services.

But a report submitted to Congress last July by the Gen­eral Accounting Office found that malpractice awards are only one factor contributing to increases in premiums for medical professional liability insurance. Other factors cited include falling investment returns for insurance com­pa­nies and normal business cycles. The report concluded that many assertions that insurance premiums are driving doctors out of business and making health care inaccessible were “not substantiated or did not affect access to health care on a widespread basis.” The report also stated that it is not possible to prepare a full analysis of the issue because comprehensive insurance data is not available.

In January, the Congressional Budget Office reported that malpractice costs account for less than 2 percent of health care spending, and that im­posing caps in liability cases would have essentially no impact on the cost of health care or malpractice insurance.


In a letter to congress in July, then-ABA President Alfred P. Carlton Jr. emphasized that the existing civil liability system, “which allows each state auton­omy to regulate the resolution of medical liability actions within its borders, is a hallmark of our Ameri­­can justice system.” He noted that the U.S. Supreme Court has recognized in recent decisions that health care is traditionally an area that the states have regulated.

Carlton urged, “Congress should not substitute its judgment for the systems that have thoughtfully evolved in each state over time. To do so would limit the ability of a patient who has been injured by medical malpractice to receive the compensation he or she deserves.”

The ABA’s position is that state courts’ powers of remittitur are a far more appropriate solution than arbitrary caps on noneconomic damages and related awards.

“We cannot diminish the importance of addressing large increases in medical malpractice insurance premiums,” says Miles J. Zaremski of Lincolnwood, Ill., who chairs the ABA Standing Committee on Medical Profes­sional Li­ability. “History teaches us, however, that tort reform, particularly caps on noneconomic damages, is not the remedy necessary to eliminate huge premium increases.”

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication.

This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

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